The Florida Private Whistleblower Act is designed to protect private sector employees from retaliation for “blowing the whistle” on illegal or unethical acts by a private employer contractor.
If you are a private employer, Florida’s Private Whistleblower Act could represent a real threat.
The Legal Elements of a Whistleblower Claim
An employee must prove three legal elements to win a lawsuit over retaliation against the employee for “blowing the whistle” on you:
- The employee engaged in certain types of statutorily protected activities concerning wrongdoing by the employer;
- The disclosing employee (the plaintiff in a whistleblower action) suffered an adverse employment outcome; and
- There was a causal relationship between the employee’s disclosure and the adverse employment outcome that the employee suffered.
What Are “Statutorily Protected Activities”?
As an employer, you are not allowed to retaliate against an employee who:
- Discloses or threatens to disclose any employer conduct that is a violation of an applicable legal standard (a statute, a rule, or a regulation, for example), as long as the employee provides the employer with reasonable written notice and an opportunity to remedy the violation;
- Provides information to or testifies before a government representative pursuant to an investigation, hearing, or inquiry into employer misconduct; or
- Objected to or refused to join in on employer conduct that violated a law, rule, or regulation.
The party who committed the wrongdoing in question must be someone who represents the employer (an employee, for example) or whose conduct can be legally attributed to the employer.
Examples of statutorily protected activities
You cannot retaliate against an employee for:
- Disclosing information about illegal employer activity in a written and signed complaint;
- Participating in a government investigation, hearing, or other such procedure;
- Refusing to participate in imposing an illegal adverse employment outcome on another employe (see below);
- Filing a complaint through the whistleblower’s hotline;
- Verbally objecting to or refusing to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation; or
- Filing a written complaint to a government actor concerning the employer’s illegal conduct.
Many Florida cases have interpreted the details of the foregoing requirements. Consult with your lawyer if you are unsure.
What Is an “Adverse Employment Outcome”?
An adverse employment outcome is an employment-related punishment, including:
- Harassment or creation of a hostile work environment,
- Pay cuts,
- Unfair negative evaluations,
- Passing the employee up for a promotion when they are otherwise qualified, or
- Firing or laying off the employee.
It is important to remember that the list of foregoing acts of retaliation are not necessarily exhaustive. A court might find that retaliation occurred even if it took a form not listed above.
What Is a “Causal Relationship”?
There is a causal relationship when there is some relationship between the disclosure and the adverse employment outcome. At the very least, the protected activity (including employee threats to appropriately disclose information) must have taken place before the adverse employment outcome. The employee does not have to show a direct relationship, however.
Florida Whistleblower Act Remedies
An employee can recover the following money damages under the Florida Whistleblower Act:
- Lost pay,
- Lost benefits,
- Emotional distress;
- Attorney fees, and
A court can also order the employer to reinstate the employee with full pay and benefits, and to cease itrs retaliatory activity. Punitive damages are not available.
There are many ways in which you might defend yourself against a claim under the Florida Whistleblower Act.
Lack of a Causal Connection
You can try to prove that you had an independent (non-retaliatory) reason to subject the employee to an adverse employment outcome. You might, for example, show that the employee’s work was substandard.
Statute of Limitations Violation
Strict time limits apply to the date by which an employee must file a lawsuit. Although statute of limitations rules are complex, the employee’s window of opportunity under the Private Whistleblower Act can be as little as 2 years after discovering the alleged retaliatory personnel action, or within 4 years after the personnel action was taken, whichever is earlier. .
You might take advantage of numerous other possible defenses as well, depending on the specific facts of your case.
The Employee Failed to Provide Written Notice Before Disclosing Illegal Employer Activity
An employee does not have to provide the employer with advance notice under certain circumstances. They may be under a gag order, for example, when testifying before a grand jury. If the Florida whistleblower statute required advance written notice, however (see above), you can try to prove that the employee provided no such notice. This defense will be even more effective if the disclosed information constituted employer trade secrets.
Defending You Against Liability Under Florida’s Private Whistleblower Act
A quick Google search will reveal the great number of lawyers out there who are willing to assist employees who want to assert a claim under the Florida Private Whistleblower Act. Finding a Florida lawyer who is experienced at representing employers in whistleblower claims is considerably more difficult.
Emmanuel Sheppard & Condon has been representing Florida employers for over 100 years now, and we have successfully represented many companies under Florida whistleblower law. Contact us by calling 850.433.6581 24/7 or by visiting our online contact page.